IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40313 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO LOPEZ-SALAS,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-821-ALL

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February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Arturo Lopez-Salas appeals the 72-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of

.

Lopez-Salas argues for the first time on appeal that the

magistrate judge did not have the jurisdiction or authority to

accept his guilty plea because the district court had not

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40313 -2-

referred the case to the magistrate judge. In United States

v. Bolivar-Munoz,

(5th Cir. 2002), this

court concluded that the district court must enter a proper

referral order, but found that a failure to do so causes a

procedural error, which can be waived, rather than a

jurisdictional defect. As in Bolivar-Munoz, Lopez-Salas

consented to proceedings before the magistrate judge and lodged

no objection to the absence of a referral order. Lopez-Salas

waived the procedural error.

Lopez-Salas contends that his indictment violated the Fifth

and Sixth Amendments because it lacked an allegation that he

acted with general intent. He acknowledges that his argument is

foreclosed by this court’s precedent in United States v. Guzman-

Ocampo,

(5th Cir. 2000), cert. denied,

(2001), and United States v. Berrios-Centeno,

(5th Cir. 2001), cert. denied,

(2001), but

raises it to preserve the issue for review by the Supreme Court.

Lopez-Salas argues that the felony conviction that resulted

in his increased sentence under

(b)(2) was an

element of the offense that should have been charged in the

indictment. He acknowledges that his argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States,

(1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi

v. New Jersey,

(2000). Apprendi did not No. 02-40313 -3-

overrule Almendarez-Torres. Apprendi,

;

United States v. Dabeit,

(5th Cir. 2000),

cert. denied,

(2001).

The judgment of the district court is AFFIRMED.